Brief for Amicus Curiae Libertarian National Committee in Support of Respondents

Brief for Amicus Curiae Libertarian National Committee in Support of Respondents

September 22, 2017

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Thomas G. Saunders — Wilmer Cutler Pickering Hale and Dorr LLP,

Ari J. Savitzky — Wilmer Cutler Pickering Hale and Dorr LLP,

Janine M. Lopez — Wilmer Cutler Pickering Hale and Dorr LLP,

Katherine V. Mackey — Wilmer Cutler Pickering Hale and Dorr LLP,

Jason D. Hirsch — Wilmer Cutler Pickering Hale and Dorr LLP

INTRODUCTION AND SUMMARY OF ARGUMENT

This case arises under the National Voter Registration Act. But the Ohio policy at issue—a “use-it-or-lose it” rule whereby a registered voter is deemed “inactive,” commencing a process that can result in the voter being purged from the voter rolls, because he or she did not vote during a single election cycle—also raises serious constitutional concerns. The Ohio policy is inconsistent with constitutional principles because it burdens a registered voter’s principled decision not to cast a ballot—a right that sounds in the First Amendment.

This Court has long acknowledged that in our unique form of self-government, voting implicates First Amendment principles. See, e.g., Williams v. Rhodes, 393 U.S. 23, 30 (1968). Indeed, the First Amendment’s protections are particularly important in the context of political freedoms and core acts of political expression. See, e.g., Meiklejohn, Free Speech and Its Relation to Self-Government 26 (1948). Moreover, First Amendment rights typically are bilateral, encompassing both the right to engage in protected activity and the right to refrain from it. See, e.g., Boy Scouts of Am. v. Dale, 530 U.S. 640, 647-648 (2000). That is true for the right not to vote. Voters can and do make principled, political decisions to sit out particular election cycles based on their political beliefs. They may do so to express disapproval with the candidates or with the process. Commencing a process to remove voters from the rolls because they did not vote in a single election cycle undermines voters’ ability to take this type of political action, penalizes them for their acts of political expression, and is akin to forced political activity.

Ohio’s policy severely burdens voters’ political rights. Ohio’s rule means that principled non-voters— citizens who register their displeasure with the lack of choices presented in particular election cycles by not voting, including citizens who are members or supporters of “third parties” like the Libertarians—can ultimately be purged from the voter rolls by the State for expressing their political views. The voter is first formally marked as “inactive” for not voting in a single election. After that, the voter will be sent a confirmation card by the State at whatever address the State has on file for that voter. Whether or not the voter actually receives the card,2 if the voter has not either returned it, or voted, by the end of the subsequent two election cycles, the voter is purged from Ohio’s voter registration file.

The harms flowing from Ohio’s rule are significant. Once removed from the rolls, the now-unregistered voter is ineligible to sign ballot access petitions under state law (i.e., unable to help their preferred candidates, parties, and initiatives make it onto the ballot in future elections), unable to be identified and contacted by candidate campaigns that rely on the state’s voter registration records, and invisible to pollsters and others who measure public opinion by seeking the views of registered voters.

Ohio’s “use-it-or-lose-it” rule tangibly and particularly disadvantages the State’s “third-party” voters, including supporters of the Libertarian Party (150,000 of whom voted for a Libertarian candidate for President in 2016 in Ohio alone). Limiting the political rights of certain voters because they have chosen to express disdain for a process that quite often, all the way down the ballot, offers too few meaningful choices, and that often disadvantages “third parties” in favor of the Democratic and Republican duopoly, is inconsistent with First Amendment principles.

This Court generally interprets statutes to avoid serious constitutional problems “unless [the] construction is plainly contrary to the intent of Congress,” Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988), which is not the case here, as Congress believed that the National Voter Registration Act protected a citizen’s principled decision not to vote in given elections. The potential conflict between Ohio’s policy and fundamental First Amendment principles thus provides yet another reason to affirm the judgment below.

Note:

2 Ohio’s reliance on mailed confirmation cards is inherently problematic. Among other things, there is no guarantee that the confirmation notice will ever be received. The likelihood of successful delivery is particularly low for certain groups—including, for example, homeless individuals. See, e.g., Dist. Ct. Dkt. 9-3 ¶ 18 (“Homeless individuals often do not have an address where they can reliably receive mail[.]”).